The City of South Perth v Simpson MLA
[2014] WASC 483
•23 DECEMBER 2014
THE CITY OF SOUTH PERTH -v- SIMPSON MLA [2014] WASC 483
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 483 | |
| 23/12/2014 | |||
| Case No: | CIV:2527/2014 | 25 NOVEMBER 2014 | |
| Coram: | MARTIN CJ | 25/11/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE CITY OF SOUTH PERTH THE CITY OF SUBIACO THE SHIRE OF SERPENTINE JARRAHDALE THE SHIRE OF PEPPERMINT GROVE ANTHONY JAMES SIMPSON MLA THE LOCAL GOVERNMENT ADVISORY BOARD |
Catchwords: | Administrative law Injunctive and declaratory relief Local government reform Amalgamation and boundary changes Power of Minister for Local Government Whether poll procedures available to electors when Minister rejects proposal Statutes Statutory construction Local Government Act 1995 (WA) Meaning of 'abolish' and 'amalgamation' in context |
Legislation: | Local Government Act 1995 (WA), s 1.3, s 2.1, s 2.5, s 2.44, s 2.45, sch 2.1, sch 2.5 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493 Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561 John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 The City of Subiaco v Simpson MLA [2014] WASC 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- THE CITY OF SUBIACO
THE SHIRE OF SERPENTINE JARRAHDALE
THE SHIRE OF PEPPERMINT GROVE
Applicants
AND
ANTHONY JAMES SIMPSON MLA
THE LOCAL GOVERNMENT ADVISORY BOARD
Respondents
Catchwords:
Administrative law - Injunctive and declaratory relief - Local government reform - Amalgamation and boundary changes - Power of Minister for Local Government - Whether poll procedures available to electors when Minister rejects proposal
Statutes - Statutory construction - Local Government Act 1995 (WA) - Meaning of 'abolish' and 'amalgamation' in context
Legislation:
Local Government Act 1995 (WA), s 1.3, s 2.1, s 2.5, s 2.44, s 2.45, sch 2.1, sch 2.5
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicants : Mr C P Shanahan SC & Mr N J Landis
Respondents : Mr C S Bydder
Solicitors:
Applicants : Hammond Legal
Respondents : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493
Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296
The City of Subiaco v Simpson MLA [2014] WASC 493
- MARTIN CJ: (This judgment was delivered extemporaneously on 25 November 2014 and has been edited from the transcript.)
1 The applicants in these proceedings are the City of South Perth, City of Subiaco, Shire of Serpentine Jarrahdale and the Shire of Peppermint Grove, all local governments created by the Local Government Act 1995 (WA) (the Act). As with the related proceedings (The City of Subiaco v Simpson MLA [2014] WASC 493), the respondents are the Minister for Local Government and the Local Government Advisory Board (the Board), and the Board has filed a submitting appearance in these proceedings.
The nature of judicial review proceedings
2 It is important at the outset to describe the general nature of legal proceedings which challenge administrative decisions and processes and which these proceedings exemplify. Such proceedings are not concerned with the merits of administrative processes or decisions, but only with their legality. In this case it is not for the court to assess or express any view as to the merits or otherwise of the proposals for reform of the boundaries of the local government districts within the metropolitan area of Perth.
3 The court's only concern, and the court's only function, is to determine whether the requirements of the Act have been met, and whether the processes and procedures for district alteration stipulated in the Act have been followed, or whether either the Minister or the Board have exceeded the legal powers conferred upon them by the Act or failed to perform legal obligations imposed upon them.
4 If there has been a departure from the Act, before the court can intervene, it must assess whether the consequence of that departure is such that as a matter of law the Minister or the Board has exceeded the jurisdiction conferred by the Act, because, generally speaking, the court can only act if the relevant administrative official or body has exceeded the jurisdiction conferred upon them by the legislature, in this case the jurisdiction conferred pursuant to the Act.
5 There are limits upon intervention by the court which depend upon the nature of the relief sought. In the case of mandamus, which is an order directing an official to do something, or certiorari, which is in effect an order quashing something done by an official, it must be shown that the actions of the official have had an effect upon legal rights and interests, legal duties or obligations or legal powers and in respect of which the party moving the court has a relevant interest. It does not seem that relief of that character is sought in these proceedings, having regard to the minute of relief served yesterday by the applicants.
6 However, the applicants do seek injunctive relief which would prevent the Minister from acting upon any of the recommendations made to him by the Board following its consideration of the various proposals for the amendment of local government boundaries in the metropolitan area. The law with respect to the entitlement to injunctive relief is complex, but for present purposes it is sufficient to observe that generally speaking and insofar as these proceedings are concerned, the applicants would have to demonstrate that the Minister or the Board have acted or propose to act unlawfully and in a way which has or would prejudice their legal rights or interests in order to establish an entitlement to injunctive relief.1
7 The same requirement does not apply to relief in the form of declarations, but there must be demonstrated some practical utility in the court making a declaration before it will be made. The principles applicable to this area were conveniently described by the High Court of Australia in its decision in Ainsworth v Criminal Justice Commission:2
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen', or if 'the Court's declaration will produce no foreseeable consequences for the parties'. (footnotes omitted)3
8 Further, in proceedings of this kind, the grant of any relief is within the discretion of the court. The grounds upon which the court can refuse relief are not confined and they include cases in which the relief would serve little or no practical purpose.4
9 There is another general legal principle which is relevant to these proceedings. The courts do not permit their limited publicly funded resources to be dissipated by busybodies who have no particular interest in the proceedings they have commenced. This principle is embodied in the rules which require all parties to have sufficient standing to commence proceedings. At the risk of oversimplification, in order to have standing, a person's legal rights and interests must be affected by the conduct of which they complain or they must have a special or particular interest in the subject matter of the proceedings over and above that of the public generally.5 So in this case the applicants have standing to challenge decisions or actions of the Minister or the Board which relate to the abolition of their local government district or to alterations to its boundaries, but they do not have standing to challenge actions or decisions relating to other local government districts or boundaries unless they can establish that those decisions have had an effect on their district or its boundaries.
The Act
10 The focus of these proceedings is upon whether either or both of the Minister or the Board have exceeded the jurisdiction conferred upon them by the Act. It is therefore appropriate to start with a review of the legal framework created by the Act. Section 1.3 of the Act sets out the general objectives of the Act, which include the provision for a system of local government by providing for the constitution of elected local governments in the state and describing the functions of local governments. In that context, s 1.3(2) provides that:
(2) This Act is intended to result in -
(a) better decision-making by local government; and
(b) greater community participation in the decisions and affairs of local governments; and
(c) greater accountability of local governments to their communities; and
(d) more efficient and effective local government.
12 Section 2.5 of the Act provides that where an area of the state becomes a district, a local government is established for that district, and that the local government is a body corporate with perpetual succession and common seal and has the legal capacity of a natural person. So, once a district is created, then a local government is created in respect of that district by the operation of s 2.5.
13 Division 8 of pt 2 of the Act relates to the Board. Section 2.44 establishes the Board and gives legal effect to sch 2.5, which contains provisions about the Board. Section 2.45 provides that the functions of the Board include considering, and if required by the Act inquiring into, any proposal made to it under the Act that an order be made to do any or all of the matters in s 2.1 and various other sections of the Act, and also include making recommendations to the Minister on those proposals.
14 Much of the argument in this case has focused upon the terms of sch 2.1 of the Act and it is therefore appropriate to give detailed consideration to those provisions. By cl 1 of the schedule, various terms used in the schedule are defined. They include the term 'affected electors', which is relevantly defined in relation to a proposal, to mean:
[E]lectors whose eligibility as electors comes from residence, or ownership or occupation of property, in the area directly affected by the proposal.
- 'Affected local government' is defined by cl 1 to mean:
[A] local government directly affected by a proposal.
The word 'proposal' is defined by cl 1 to mean:
[A] proposal made under clause 2 that an order may be made as to any or all of the matters referred to in section 2.1.
Clause 2 of sch 2.1 provides that:
A proposal may be made to the Advisory Board by -
(a) the Minister; or
(b) an affected local government; or
(c) 2 or more affected local governments, jointly; or
(d) affected electors who -
(i) are at least 250 in number; or
(ii) are at least 10% of the total number of affected electors.
15 A proposal must also be accompanied by a plan illustrating any proposed changes to the boundaries of a district; and must also comply with any regulations about proposals, although there are none relevant to proposals by a minister or local government. The only relevant regulation concerns a proposal advanced by affected electors.
16 Clause 3 of sch 2.1 requires the Board to consider any proposal and requires that unless the Board exercises the specific powers given to summarily dispose of proposals made to it, the Board must formally inquire into the proposal.
17 Clause 4 provides that where a formal inquiry is required, the Board is to give notice to various persons including affected local governments and affected electors.
18 The notice must advise that submissions may be made to the Board within the time-frame specified by the clause. Clause 5 contains provisions relating to the conduct of the inquiry and the matters into which the Board is to inquire.
19 Clause 6 provides that after formally inquiring into a proposal, the Board, in a written report to the Minister, is to recommend either that the Minister reject the proposal; or that an order be made in accordance with the proposal; or if it thinks fit after complying with provisions of the subclause relating to consideration of a varied proposal, by making some other order that may be made under s 2.1.
20 Clause 6 limits the circumstances in which the Board may make some other recommendation by, effectively, requiring notice to be given to interested parties if there is to be a significant departure from the proposal under consideration by the Board.
21 Clause 7 empowers the Minister to conduct a poll of electors upon receiving the Board's recommendations. Clause 8 provides that:
(1) Where the Advisory Board recommends to the Minister the making of an order to abolish two or more districts (the districts) and amalgamate them into one or more districts, the Board is to give notice to affected local governments, affected electors and the other electors of districts directly affected by the recommendation about the recommendation.
(2) The notice to affected electors has to notify them of their right to request a poll about the recommendation under subclause (3).
(3) If, within one month after the notice is given, the Minister receives a request made in accordance with regulations and signed by at least 250, or at least 10%, of the electors of one of the districts asking for the recommendation to be put to a poll of electors of that district, the Minister is to require that the board's recommendations be put to a poll accordingly.
(4) This clause does not limit the Minister's power under clause 7 to require a recommendation to be put to a poll in any case.
22 Clause 9 is concerned with the procedure for holding a poll. Clause 10 provides that:
(1) Subject to subclause (2), the Minister may accept or reject a recommendation of the Advisory Board made under clause 3 or 6.
(2) If at a poll held as required by clause 8 -
(a) at least 50% of the electors of one of the districts vote; and
(b) of those electors of that district who vote, a majority vote against the recommendation,
the Minister is to reject the recommendation.
(3) If the recommendation is that an order be made and it is accepted, the Minister can make an appropriate recommendation to the Governor under section 2.1.
23 It will be necessary to come back to this clause in more detail later, but it is sufficient for present purposes to observe that its structure, generally, is to provide the Minister with a general discretion to either accept or reject a recommendation of the Board, subject only to the constraint imposed by subclause (2). That constraint will apply if one or other of the two districts abolished has been the subject of a poll and 50% of the electors in that district voted, and of the electors who vote, the majority voted against the recommendation. Unless those various conditions are satisfied, the Minister retains a general discretion to either accept or reject the recommendation of the Board.
24 As I have noted, sch 2.5 of the Act relates to the Board. Clause 2 of that schedule provides that the Board is to consist of five members, and specifies the characteristics of the persons who are to comprise the membership of the Board. Specifically it provides for one person to be nominated by the Minister, two persons with experience as members of a council appointed from a list submitted to the Minister by a local government organisation, one person having experience as the CEO of a local government appointed from a list submitted by another organisation, and one person who is to be an officer of the Department6 nominated by the Minister.
25 Clause 3 provides for the appointment of deputies to any member appointed under the provisions of cl 2, other than for the nominee of the Minister, and also provides for the circumstances in which those deputies may act in place of the person appointed.
26 Clause 7 provides for the meetings of the Board and provides that the member appointed under cl 2(a) on the nomination of the Minister is to preside at all meetings of the Board at which he or she is present. The same clause provides that if the member appointed on the nomination of the Minister is not present at the meeting, then the member appointed under cl 2(d), who is the member who is an officer of the Department, is to preside. The same clause provides that the quorum of a meeting is three, one of whom must be the member appointed by the Minister or the member appointed who is an officer of the Department. The clause goes on to specify the manner in which members vote and also to specifically require that each member is to have regard to the general interests of local government in the state. Subclause (7) provides that:
Subject to any order under subclause (8), a member is disqualified from acting where the matter being considered or inquired into by the Advisory Board is a matter relating to a local government of which the member is a member, employee or elector.
- However, subclause (8) provides:
The Minister may, by order, declare that subclause (7) does not apply in relation to a matter or class of matters specified in the order, and that order has effect according to its terms.
28 Clause 10 of sch 2.5 provides that:
The Departmental CEO is to make an officer of the Department available to the Advisory Board to act as its executive officer.
29 It will be necessary for me to return to those provisions in more detail later, but it is sufficient to observe that it is clear from the face of sch 2.5 that the legislature intended that there would be a significant degree of connection between the Board and the Department. The Act specifies that the officer of the Department who is a member of the Board is to have significant responsibilities as a member of the Board, including presiding in the absence of the nominee of the Minister and the presence of that person is required to make up a quorum if the nominee of the Minister is not present. The Board is supported by an executive officer who is an officer of the Department.
The facts
30 The facts that are relevant to these proceedings should be read in conjunction with the facts that I have related in the context of the earlier proceedings The City of Subiaco v Simpson MLA [2014] WASC 493. The additional facts that are relevant essentially relate to the Shire of Peppermint Grove. In relation to that shire, the Board accepted recommendation 24, which was not a recommendation made by the Minister. That recommendation was:
Recommendations
1. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 3 recommends pursuant to clause 6 (1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
2. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 12/2013 recommends pursuant to clause 6 (1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
Proposal 24 (Mosman Park/Peppermint Grove/Cottesloe/Claremont/Nedlands)
The Local Government Advisory Board (the Board) recommends to the Minister:
1. pursuant to clause 6 (1) (b) of Schedule 2.1 to the Local Government Act 1995 (Act), that an order be made, under section 2.1 (1) (d) of the Act:
(a) abolishing the current districts of:
- (i) the Town of Mosman Park;
(ii) the Shire of Peppermint Grove;
(iii) the Town of Cottesloe;
(iv) the Town of Claremont; and
(v) the City of Nedlands.
[see Act s2.1 (1) (c)]
- (b) declaring the area of the State comprising:
(i) the former district of the Town of Mosman Park;
(ii) the former district of the Shire of Peppermint Grove;
(iii) the former district of the Town of Cottesloe;
(iv) the former district of the Town of Claremont; and
(v) the former district of the City of Nedlands,
to be a district (the new district);
[see Act s2.1 (1) (a)]
(c) changing the boundaries of the new district to reflect those shown in Section 1.11 of the Appendices.
[see Act s2.1 (1)(b)]
- 2. pursuant to clause 10A (1) (a) of Schedule 2.1 to the Act, that:
(a) the order referred to at para 1 above, which is required to include an order naming the new district and an order designating the district, name it the City of Riversea and designate it a city.
[see Act ss 2.1.(1) (a) & 2.3 (1)]
- (b) the order which specifies the number of offices of councillor on the council for the local government of the City of Riversea, specify that the number of offices of councillor on the council be 14.
[see Act ss 2.1 (1) (a), 2.5 (1) & 2.18 (1) (a)]
Grounds of review
32 The first question raised by these proceedings is whether, in the circumstances, the Minister had power to reject the recommendation prior to the conduct of a poll, or alternatively, whether having now rejected the recommendation, the obligation to conduct a poll falls away.
33 The second question is whether proposals 5 and 17, which were accepted by the Board and recommended to the Minister, relating to the City of Subiaco and the Shire of Serpentine Jarrahdale, trigger the operation of cl 8 because they involve the abolition of one district and the amalgamation of that district into another. Although there may have been some doubt in relation to the City of South Perth's position at the time these proceedings were commenced, that position is no longer contentious.
34 That is because the Minister accepts and has communicated unequivocally through counsel that the provisions of cl 8 apply to the recommendation made with respect to the City of South Perth and the Town of Victoria Park and accepts that if a poll is conducted, the outcome of which falls within the terms of cl 10(2) of sch 2.1 of the Act, he cannot recommend the proposal for acceptance by the Governor.
35 In these proceedings the relief sought is a mandatory injunction requiring the Minister and the Board to do certain things said to be necessary to correct the actions which are said to have been unlawful, and declaratory relief. The principles guiding the grant of that relief have been set out above [6] - [9].
36 In relation to the City of South Perth, the relief sought includes what is compelling the Minister to clarify statements he has made in relation to the entitlement to a poll enjoyed by electors in that district. In my view, relief of that kind is clearly premature. The poll has not yet been conducted and there is no way of assessing whether those statements may or will have any effect on the poll. These proceedings are concerned with the legal validity of the actions taken by the Minister, not with the propriety of conduct or the regularity of any poll that might be conducted.
37 If, after the poll has been conducted, the City of South Perth wishes to argue that the conduct of the Minister has prevented the poll from being fair, that argument will have to be considered in light of all the evidence relating to the manner of conduct of the poll. So I do not accept that there is any basis for the grant of relief of that kind.
38 I will deal now with the question relating to the conduct of a poll in respect of the recommendation relating to the proposal with respect to the creation of the City of Riversea. The applicants argue that the Minister had no power to reject the recommendation prior to the implementation of the provisions of cl 8 relating to a poll and describe compliance with that procedure as a jurisdictional fact upon which the Minister's jurisdiction to accept or reject the Board's recommendation depends. That characterisation of the provisions of cl 8 is, with respect, erroneous. A jurisdictional fact is an occurrence or event upon which jurisdiction depends. For example, in immigration matters, it is often the case that a deportation order cannot be made unless its subject is not a citizen of Australia.
39 A different taxonomy is customarily used in relation to processes and procedures specified by legislation such as the procedure specified by cl 8, although the question as to whether the legislature intended that the consequence of non-compliance with the procedure or process would result in invalidity of any subsequent steps is a question of statutory construction. The process of construction to be followed is, of course, well set out by the decision of the High Court in the case Project Blue Sky Inc v Australian Broadcasting Authority.8 But in this case, there is an antecedent question of construction, and that is whether the Act requires the opportunity of a poll to be offered to affected electors even if the Minister has determined to reject the proposal or the recommendation made to him by the Board. That question arises in the context of cl 10 of sch 2.1.
40 With respect to that question, it is significant the Minister is generally not bound to observe the outcome of the poll, and the discretion conferred upon him by cl 10(1) is unconstrained unless the circumstances specifically described in subclause (2) come to pass. Put another way, the Minister's discretion to accept or reject a recommendation made by the Board is only constrained in one circumstance, being the circumstance described in cl 10(2), which requires there to have been a poll at which 50% of the electors of the relevant district have voted and a majority have voted against acceptance of the proposal.
41 In that circumstance, the effect of the poll is to mandate rejection of the proposal by the Minister and to deprive him of any power to accept. The question which that poses is whether the Minister can reject a recommendation to which cl 8 applies before the time for calling a poll has passed in the exercise of the general discretion conferred by cl 10(1). In this context, it is relevant to note that if any proposal which does fall within cl 8 is reactivated at some time in the future, then, plainly, a poll would have to be offered to electors before the Minister could accept any recommendation in those terms.
42 It is significant in this context that cl 10(1) confers an unconstrained discretion. Clause 10(2) does not expressly constrain the power to reject a recommendation. Rather, it requires a recommendation to be rejected in certain circumstances. However, the cl 8 process is also not constrained by a prerequisite that the Minister not have determined to reject the recommendation. There is a drafting anomaly evident on the face of these provisions, and there are three possible constructions to resolve the drafting anomalies.
43 The first possibility is that the Minister can reject a recommendation before a poll is conducted and cl 8 no longer applies. That is the construction for which the Minister contends. The second possibility is that the Minister cannot reject a recommendation until a poll procedure has been completed, and that is the construction for which the applicants contend. The third possibility is that the Minister can reject a recommendation but there must still be a poll if anybody requires that poll. No party contends for that construction of the Act for good reason, because it would be absurd and could not be consistent with a rational legislative intention.
44 In the choice between the constructions for which the parties contend, there are two significant problems with the applicants' proposed construction. Firstly, there are no words in cl 8 or cl 10 which expressly support that construction. Secondly, the construction does not appear to serve any apparent legislative objective. That is because the only effect of a poll is, in some circumstances, to mandate rejection. If the Minister has determined to reject the recommendation anyway, no point or purpose is to be served by a poll.
45 There is no way in which the Shire of Peppermint Grove or its ratepayers could be adversely affected by this construction of the Act, because before any proposal which comes within the scope of cl 8 could be accepted, the poll procedure would have to be followed. It is also significant to the proper construction of sch 2.1 that if the Minister would be assisted by a poll, cl 7 of the Act empowers him to call a poll. By contrast, it seems to me that the applicants' construction would attribute to Parliament an intention to require a futile poll at public expense in the circumstance in which the Minister was determined to reject the recommendation.
46 So for those various reasons, it seems to me that the Minister's construction of the interplay between cl 8 and cl 10 in sch 2.1 is to be preferred, that it was open to him to determine to reject the recommendation prior to the implementation of the poll procedures, and having decided to reject the recommendation, there is no point or purpose to be served in implementing the poll procedures under cl 8, and that the Board, in those circumstances, was correct not to give the notices suggesting to affected electors that they could implement those procedures.
47 By way of completeness, I should observe that even if I had agreed with the applicants' construction of the Act in this respect, I would have refused relief in the exercise of my discretion because, in the circumstances before the court, no legal or practical point or purpose would be served by the conduct of a poll.9 So for these reasons, the first issue raised by the applicants in the second set of proceedings fails.
48 The second legal issue raised by these proceedings concerns the proper construction of cl 8 and, in particular, the applicants' contention that the abolition of one district and its amalgamation into another district effectively abolishes the second district as well, with the result that two districts are abolished and cl 8 is triggered. A fundamental problem with this construction of cl 8 is, as I indicated to counsel during the course of argument, that if that were the intention of the legislature, it is impossible to reconcile with the terms used by cl 8. Clause 8(1) commences with:
Where the Advisory Board recommends to the Minister the making of an order to abolish 2 or more districts (the districts) and amalgamate them into one or more districts, the Board is to give notice …
49 The applicants' proposition is that where one district is abolished and it is amalgamated into one or more districts, then because those other districts are also, effectively, abolished, the clause applies. But, of course, if that was what Parliament had intended, then the number '2' in the clause would serve no purpose whatsoever. In any circumstance in which a district is abolished, unless the district is no longer to be subject to local government, because, for example, all the inhabitants have left that district will necessarily be amalgamated into one or more other districts.
50 The requirement that there be the abolition of two districts can only serve to indicate a parliamentary intention that there must be more than one district which is to be abolished and amalgamated into one or more other districts, because, as I have mentioned, by definition, every time a district is abolished, if it is to remain subject to the Act, it must be amalgamated into one or more other districts.
51 The applicants rely, in support of their contention, upon s 1.3(2)(b) of the Act, which I mentioned earlier and which refers to the intended result of the Act in terms of promoting greater community participation in the decisions and affairs of local governments. There are two reasons why that reliance is misplaced. Firstly, it appears to me to misconstrue the subsection. The paragraph is to be found in a subsection of the Act which has four provisions, all of which, by their natural and ordinary meaning, are concerned with the relationship between local government and the ratepayers or residents of the areas governed by local government. That is apparent from subclause (c), for example, which refers to the greater accountability of local governments to their communities. The issue before the court is not concerned with the relationship between local government and their communities, but rather with the structure of local government in the State. Accordingly, the provisions of s 1.3(2)(b) shed no particular light on the proper construction to be given to cl 8 of sch 2.1.
52 The second reason is that by cl 8, Parliament has clearly chosen to limit the circumstances in which a poll can be required by affected electors. Thus, if it were the intention of Parliament to facilitate greater community participation in the decisions and affairs of local government by providing the opportunity of a poll in any circumstance in which one local government district was abolished, then plainly the Parliament could have said so in cl 8. It cannot be the parliamentary intention that every elector affected by the abolition of a district in which they reside will have an entitlement to request a poll, and that is clear from the use of the number '2' in cl 8.
53 The question then is what did Parliament mean by the words which are used in cl 8. To my mind, the meaning of that clause is clear. Two districts have to be abolished, and both abolished districts must be amalgamated into one or more other districts before a poll may be required by affected electors. The plain and ordinary meaning of the words used in the clause attests to this intention. Abolition of one district, as I have mentioned, will almost always require its amalgamation into one or more other districts, unless the area concerned is no longer to be the subject of local government. But parliament has clearly decided not to include that circumstance within cl 8.
54 That construction of the clause is reinforced by a number of aspects of sch 2.1. Firstly, as I have noticed, the term 'the districts' is placed in parentheses to indicate clearly to the reader that it is a defined term where used elsewhere, and it is a term that is defined to refer to the two or more districts that are to be abolished by the making of an order. That defined term is used again in cl 8(3), and in that context, it is clear that the reference is to the electors of one of the two districts to be abolished. Similarly, in cl 10(2)(a), where the use of the phrase 'the districts' is used again, it clearly connotes the electors of one of the two districts that are to be abolished. This use of the defined term clearly connotes that there must be two or more districts which are to be abolished.
55 The second consideration which points in favour of the construction for which the Minister contends is in cl 8(1) itself, where it refers to the requirement of the Board to give notice to affected local governments, affected electors and to the electors of other districts directly affected by the recommendation. So, the clause distinguishes between affected electors and the electors of other districts directly affected by the recommendation. Therefore the distinction is clear from the structure of the clause itself. 'Affected electors' is a reference to the electors in the two or more districts that are to be abolished, and the electors of other districts directly affected by the recommendation are the districts into which one or more of the districts to be abolished are to be amalgamated. That is consistent with the notion that there must be two districts which are to be abolished, and those districts do not include the districts into which the abolished districts are to be amalgamated.
56 It is also significant that the clause uses the word 'abolish'. That term is not defined, but it draws its meaning in cl 8 from the way in which it is used in s 2.1. As I mentioned earlier, s 2.1 provides that the Governor may make recommendations doing various things including changing the boundaries of a district which is separate and distinct from an order abolishing a district.
57 The distinction between those two things is relatively clear from the structure of the Act, because when a district is established, a local government is created in respect of that district by s 2.5. So when a district is abolished under s 2.1, the local government body that previously existed in relation to that district ceases to exist. On the other hand, when an order is made changing the boundaries of a district, the local government body continues to exist under s 2.5, but in respect of a different area.
58 So there is a clear distinction drawn by the structure of the Act between abolition on the one hand and a change of boundaries on the other. That distinction determines whether or not the local government body relevant to the district continues to exist. So it seems to me to be clear that the Act distinguishes between abolition of a district on the one hand, and changes to the boundaries of a district on the other, through the various indicators to which I have referred. That distinction reinforces my view of the plain and ordinary meaning of cl 8.
59 That view reinforces the position taken by the Minister, and it therefore follows that the recommendations made, being proposals 5 and 17, relating to the City of Subiaco and the Shire of Serpentine Jarrahdale do not come within cl 8 of sch 2.1, and no poll is required in relation to those recommendations. For that reason, the second proposition enunciated by the applicants in these proceedings must also be dismissed with the result that these proceedings should be dismissed.
1John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400, 405 - 406 (Moffitt P, Reynolds JA agreeing); Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561, 570 - 571 (Ipp J).
2Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
3Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 - 582 (Mason CJ, Dawson, Toohey & Gaudon JJ).
4Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 [45] (Martin CJ).
5Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493.
6 As defined in s 1.4 of the Act.
7 Clause 7(9) of sch 2.5.
8Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
9 [8] as above.
0
9
1